[Federal Register: July 12, 2004 (Volume 69, Number 132)]
[Notices]
[Page 41838-41845]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12jy04-51]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
Fish and Wildlife Service and Council of Athabascan Tribal
Governments Sign Annual Funding Agreement
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice.
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SUMMARY: On April 30, 2004, the U.S. Fish and Wildlife Service (Service
or we) signed an annual funding agreement (AFA or Agreement) with the
Council of Athabascan Tribal Governments (CATG) under the Tribal Self-
Governance Act of 1994. The action was taken at the discretion of the
Service. The decision reflects review and consideration of concerns,
issues, and comments received during a 60-day public comment period.
The Agreement was re-negotiated and slightly re-worded following the
public comment period. The Agreement provides for the CATG to perform
certain programs, services, functions, and activities (Activities) for
the Yukon Flats National Wildlife Refuge (Yukon Flats Refuge) during a
one-year period for $59,000. The regional director for the Service in
Alaska signed a decision document on this action on Monday, April 26,
2004. The Agreement was endorsed by the Secretary of the Interior on
April 30, 2004, and forwarded to the U.S. Congress for a 90-day review
period.
DATES: The agreement period is proposed for August 1, 2004, through
July 31, 2005.
ADDRESSES: The final agreement and supporting documentation can be
obtained at:
1. Fairbanks--Yukon Flats National Wildlife Refuge Headquarters,
101 12th Avenue, Room 264, Fairbanks, Alaska 99701.
2. Anchorage--U.S. Fish and Wildlife Service Regional Office,
National Wildlife Refuge System--Alaska, 1011 East Tudor Road,
Anchorage, Alaska 99503.
3. Internet--http://www.r7.fws.gov/media/catg/index.htm
FOR FURTHER INFORMATION CONTACT: Ted Heuer, Refuge Manager, (907) 456-
0407.
SUPPLEMENTARY INFORMATION:
Authority: 16 U.S.C. 668dd et seq., Pub. L. 103-413, Pub. L. 93-
638, 25 CFR 1000.
What Is the Yukon Flats National Wildlife Refuge? The Yukon Flats
Refuge is the third largest refuge within the National Wildlife Refuge
System, administered by the Service in accordance with the National
Wildlife Refuge Administration Act, as amended, 16 U.S.C. 668dd.
Established by the Alaska National Interest Lands Conservation Act of
1980, the Refuge boundary encompasses 11 million acres. Village
corporations and the Doyon, Ltd. regional Native Corporation for the
area, established under the Alaska Native Claims Settlement Act (ANCSA,
Pub. L.
[[Page 41839]]
92-203), own over 2 million acres within the boundary. A 300-mile reach
of the Yukon River flows through the heart of the Refuge. There are
over 20,000 shallow lakes, ponds, and wetlands in the Refuge, which is
internationally recognized as a primary breeding area for North
American waterfowl and water birds.
What Is the CATG? The CATG is a qualified tribal consortium
composed of Arctic Village, Beaver, Birch Creek, Canyon Village,
Chalkyitsik, Circle, Gwichyaa Zhee Gwich'in Tribal Government of Fort
Yukon, Rampart, Stevens Village, and Venetie. These are predominantly
Athabascan Indian villages within the boundary or very near the Yukon
Flats Refuge. The offices of the CATG are located in Fort Yukon,
Alaska, within the refuge boundary.
How Did the Service Develop the Agreement? The negotiations between
the Service and the CATG were carried out in accordance with
regulations in 25 CFR part 1000.
What Events Led to This Action? On June 16, 2003, the Service
received a proposal, dated May 30, 2003, from CATG to assume some
Activities at the Yukon Flats Refuge under the Indian Self-
Determination and Education Assistance Act (Pub. L. 93-638), as amended
by the Tribal Self-Governance Act, Public Law 103-413. The proposal
asserted that in accordance with section 403(c) of Public Law 93-638,
as amended, the Activities were of geographic, historical, and cultural
significance to CATG and its member tribes. The parties first met on
August 19, 2003, in a pre-negotiation meeting. Because of that meeting,
CATG modified the proposal. The two parties agreed at the August 19
meeting that the federally mandated 10-day Service response time would
begin following receipt of the modified proposal. According to the
regulations implementing Public Law 93-638, the agency must provide a
reply within 10 days of the pre-negotiation meeting, explaining whether
an Activity is available for negotiation. The Service received the
modified proposal on August 29, 2003. On September 5, 2003, the Service
sent a response to CATG indicating that eight listed Activities were
available to be included in an AFA because they were not inherently
Federal functions, and they were of geographic and cultural
significance to the tribes that make up CATG. The parties agreed to
begin official negotiations on September 28, 2003. After this first
meeting, the two parties continued to negotiate specifics of the AFA
and reached this Agreement in late December 2003. The regulations allow
for a public consultation process. The public was officially notified
of a tentative Agreement in a public notice on February 13, 2004. The
Service called the Agreement tentative because it declined to sign the
Agreement until after the public consultation process. The notice was
published in newspapers and posted on the Service's Alaska Region Web
site. The notice stated that we would accept public comments for 45
days. Subsequently, we extended the comment period for an additional 15
days, which placed the last day to postmark comments on April 13, 2004.
We extended the comment period for two reasons. First, on March 15,
2004, the Service's Internet and e-mail capabilities were disconnected
due to a court order affecting several bureaus within the Department of
the Interior (DOI). The public had been invited to submit comments to
the Service via e-mail, and to read the tentative Agreement on the
Service Web site. Nine days later, on March 24, 2004, our Internet and
e-mail capabilities were re-established as allowed by a subsequent
court order. The second reason to extend the comment period was based
upon requests by numerous members of the public who requested an
extension of the public comment period to 90 days.
What Is the Tribal Self-Governance Act? The Tribal Self-Governance
Act of 1994 was enacted as an amendment to Public Law 93-638 and
incorporated as Title IV of that Act. The Self-Governance Act allows
identified self-governance tribes the opportunity to request AFAs with
the Bureau of Indian Affairs (BIA) and non-BIA agencies within DOI.
When dealing with non-BIA agencies, including the Service, identified
tribes may enter into funding agreements that would allow them to
conduct certain Activities of such non-BIA agencies. Eligible
Activities include Indian programs (programs created for the benefit of
Indians because of their status as Indians); Activities otherwise
available to Indian tribes (any Activity that a Federal agency might
otherwise contract to outside entities); and Activities that have a
special geographic, historical, or cultural significance to an Indian
tribe.
Public Law 93-638 and the regulations that implement the law (25
CFR part 1000.129) prohibit the inclusion of Activities in an AFA that
are inherently Federal functions. The Refuge has no special Indian
programs. All Activities of the Service on national wildlife refuges
are for the benefit of the fish and wildlife resources, their habitats,
and the American public. Activities that may have a special
relationship with a tribe are the most promising for inclusion in an
AFA. Whether to enter into an agreement with a tribe for these
Activities is discretionary on the part of the Service. The Service
recognizes that most members of CATG that live within the boundary of
the Yukon Flats Refuge or very close to it, have used the lands and
resources of the Yukon Flats Refuge for most of their lives, as did
their ancestors, and therefore feel very much a part of these lands.
What Happens Now? The Service's regional director for Alaska signed
a decision document on April 26, 2004. The Service and CATG signed the
Agreement on April 30, 2004. The Secretary of the Interior accepted and
endorsed the Agreement the same day. In accordance with 25 CFR
1000.177, the Secretary then forwarded the Agreement to the House
Resources Committee, Office of Native American and Insular Affairs, and
the Senate Committee on Indian Affairs. If there are no objections to
the Agreement, it will go into effect 90 days after it was submitted to
Congress.
Summary of Public Involvement
The Service announced the public comment period on February 13,
2004, by placing public notices in the principle daily newspapers in
Anchorage, Fairbanks, and Juneau, Alaska. A joint Service-CATG news
release was sent to Alaska media offices. The public notice, the news
release, the Agreement with project work descriptions, and a series of
questions and answers were posted on the Service's Alaska Web site,
http://www.r7.fws.gov/media/catg/index.htm. When the Service's access
to the internet and e-mail was stopped by court order, we placed
announcements in the above newspapers and mailed an announcement to 77
parties who had commented earlier or who we knew were interested in the
draft Agreement. The announcements stated that we could no longer
receive comments by e-mail and requested that comments be sent by mail
or facsimile. This announcement also discussed the extension of the
public comment period to 60 days. We held public meetings in Fairbanks
and Anchorage on March 15 and 18, 2004, respectively. Separate
newspaper advertisements announced these meetings.
Nature of Public Comments
We received 147 public comments in a variety of ways. Several
individuals submitted more than one comment. We received 63 letters by
either mail or facsimile (or both), addressed to
[[Page 41840]]
President George W. Bush, Secretary of the Interior Gale A. Norton,
Regional Director Rowan W. Gould, Refuge Manager Ted Heuer, Assistant
Refuge Manager Jimmy Fox, Refuge Supervisor Jerry Stroebele, or other
government officials. We received 66 different e-mail messages (often
addressed to several recipients), including over 40 e-mail messages
from one individual. At the Fairbanks public meeting, eight people made
public statements. Seven people made statements at the Anchorage public
meeting. All statements at the public meetings were recorded. Two
individuals called Refuge Manager Ted Heuer during the official comment
period and made statements over the telephone. One individual visited
Refuge Headquarters to discuss the tentative Agreement and convey his
concerns. Verbal comments were documented and added to the public
record. Some comments were received before the formal notice of a
public comment period, and a few were received following the public
comment period. All comments were reviewed and placed in the public
record. We received one letter of comment from the Alaska State
Legislature. We received two comments from the Alaska Department of
Fish and Game. We received 18 comments from organizations. We received
11 comments from Indian tribes, tribal entities, or other Native
American organizations, groups, or corporations. We received 115
comments from individuals. The preponderance of comments recommended
against the Service signing the Agreement; 126 comments did not support
the Agreement as written. These comments ranged from outright
opposition to support with specific modifications. We received 21
comments supporting the Agreement unconditionally. The section below
summarizes and/or characterizes comments and attempts to respond
collectively.
Response to Public Comments
Issue 1: Length of the public comment period and number of public
meetings. Twenty-one responses urged that we extend the public comment
period to 90 days and/or also hold public meetings in Juneau,
Washington DC, and Missoula, Montana.
Response: The Service initially planned a 30-day public comment
period, consistent with most other Service public comment periods for
actions on national wildlife refuges in Alaska. However, we decided to
provide for a 45-day public comment period because we were aware of the
public interest in and controversy over, negotiations between the
Service and the Confederated Salish-Kootenai Tribes in Montana. After
we announced the 45-day public comment period, we later extended the
public comment period to 60 days, based on:
(1) Public comments that recommended an extension of the public
comment period; and (2) a court-ordered shutdown of DOI internet access
which lasted for nine days, disrupting the Service's ability to receive
comments by e-mail, and the ability of the public to review the
Agreement on the Service's Web site. If it had not been for the
interruption of our e-mail and internet, we would have waited longer in
the 45-day comment period to decide whether to extend the comment
period, and if so, for how long.
We placed public notices in newspapers in Anchorage, Fairbanks, and
Juneau announcing the extension of the public comment period, and
providing information on where, when, and how additional information
could be obtained and public comments could be submitted. As we neared
the end of the 60-day public comment period, we had received comments
from all of the conservation groups and other organizations that had
expressed interest in this issue or had previously contacted us with
questions. Given the brevity of the Agreement and supporting documents,
the limited funding amount involved, the small number of public
comments received, and the relatively low turnout for the public
meetings in Fairbanks and Anchorage, the Service did not believe that
another extension of the public comment period and additional public
meetings were necessary or would be beneficial.
Many of the comments we received addressed both the Agreement with
CATG and the current negotiations between the Service and the
Confederated Salish-Kootenai Tribes, concerning Activities at the
National Bison Range in Montana. The National Bison Range is also a
unit of the National Wildlife Refuge System, administered by the
Service's Region 6 Headquarters in Denver, Colorado. We provided copies
of all of these comments to Service officials in Montana and Denver. We
decided that a public meeting to discuss the Agreement for Activities
at the Yukon Flats Refuge in Alaska, if held in Missoula, Montana,
would generate public interest and questions more specifically
applicable to the National Bison Range, but of little applicability to
the Yukon Flats Refuge Agreement.
Issue 2: Preparation of an environmental impact statement. Twenty-
six responses requested that the Service prepare an environmental
impact statement (EIS) on the Agreement.
Response: In response to these comments, we once more reviewed DOI
policy on compliance with the National Environmental Policy Act. The
determination to proceed or not to proceed with this Agreement is an
administrative decision. The Service does not believe the Agreement is
a major federal action that will result in significant environmental
impacts. The Service considers the work that is identified in the
Agreement to be part of the routine operations, maintenance, and
management of the Yukon Flats Refuge (whether done by Service
employees, CATG employees, or another contractor). The Service has
found that routine operation, maintenance, and management activities do
not (individually or cumulatively) have a significant effect on the
human environment and are, therefore, categorically excluded from
National Environmental Policy Act compliance (part 516 of the
Departmental Manual, chapter 6).
The Service did complete a comprehensive conservation plan/
environmental impact statement/wilderness review of the Yukon Flats
National Wildlife Refuge in October 1987. This CCP and EIS provide
overall management direction and guidance for the Refuge. The
Activities identified in the Agreement with CATG are not different from
the management activities addressed in the Refuge CCP. Management of
17(b) easements, environmental education, data collection and research,
wildlife management, and subsistence management and monitoring are all
addressed in the 1987 CCP/EIS. Departmental Policy, 516 DM 2, does
require NEPA documentation if the proposed action:
* * * establishes a precedent for future action or represents a
decision in principle about future actions with potentially
significant environmental effects.
Because the Service is retaining all responsibility and authority
for managing the Refuge, and the refuge manager is responsible for
following existing laws, regulations, Service policies, and plans for
management of the Refuge, we do not envision any adverse environmental
impacts will result from this proposed action.
Issue 3: Support more cooperation with local residents. A number of
responses supported the Service's efforts to work more cooperatively
with Yukon Flats residents. Several people
[[Page 41841]]
stated that local residents would have a better understanding and
appreciation for the work of the Service if they were involved in the
day-to-day activities of the Refuge.
Response: The Agreement is the result of months of discussions with
one main goal in mind: Adhere to our responsibilities as mandated in
various laws, regulations, and policies. For instance, Public Law 93-
638 obligates a Department of the Interior agency to recognize a
tribe's right to negotiate for an annual funding agreement. The Compact
of Self-Governance between CATG and the United States of America
(Compact) and the Service's Native American Policy dictate that the
Service is to cooperate in a government-to-government relationship with
Indian tribes. We are also legally bound by the purposes of the Yukon
Flats Refuge and other management requirements set forth in the Alaska
National Interest Lands Conservation Act (Pub. L. 96-487), which
established the Refuge. We administer and manage the Refuge for all
Americans in accordance with the National Wildlife Refuge System
Administration Act (16 U.S.C. 668dd et seq.), as amended, and the
implementing regulations and policies of that Act.
Issue 4: Support for the Agreement. Twenty-one comments expressed
unconditional support for the Agreement. An additional 12 comments were
supportive of the Agreement in concept, but believed the language
should be modified to clarify certain issues.
Response: We negotiated an agreement that follows three key
documents: Public Law 93-638, the Compact, and the National Wildlife
Refuge System Administration Act (as amended). This is the first AFA in
the history of the Service, and we had no Service examples to follow;
however, we did utilize the framework of an existing AFA that we
obtained from the National Park Service. After careful review of public
comments, we re-negotiated with CATG and modified the Agreement to
clarify several issues. This document notes those changes.
Issue 5: This Agreement will set a bad precedent for national
wildlife refuges and national parks. Thirty-seven comments, while
sometimes applauding the Service and CATG for their efforts to work
together more cooperatively, were very concerned about the precedent
this Agreement would set for other national wildlife refuges, national
parks, national monuments, national historic sites, Federal water
projects, etc. (Several comments were unconditionally opposed to the
Agreement because of this precedent.)
Response: We are very aware that this Agreement will set an example
for the National Wildlife Refuge System. We believe this Agreement, as
currently amended to address some of the concerns raised by the public,
sets a good standard for the National Wildlife Refuge System and is
consistent with all applicable laws and regulations regarding Tribal
Self-Governance and the National Wildlife Refuge System. It should also
be noted that this is not the first non-BIA annual funding agreement
for DOI programs of special geographic, historical, or cultural
significance to participating Tribes (see 25 CFR subpart F). The
National Park Service has had an annual funding agreement with the
Grand Portage Band of Lake Superior Chippewa, for maintenance work at
the Grand Portage National Monument in Minnesota, for several years. We
recognize that, particularly in Alaska where Native Americans are still
largely dependent on fish, wildlife, and plants on national wildlife
refuges, a strong and continuing cooperative effort must be nurtured
and maintained between Service employees and tribal members. This
Agreement is one of many tools available to us to further cooperation.
We very carefully exercised our discretion in entering this Agreement
and would be equally careful in negotiating any future agreements with
tribes.
Issue 6: Competitive contracting would be better. Many comments
suggested that competitive contracts would make more efficient use of
limited refuge budgets and would be a more equitable way of doing
business.
Response: The Service has, and will continue to use, competitive
contracts where appropriate. However, the law and DOI regulations (25
CFR 1000.122-126) implementing Tribal Self-Governance, allow tribes to
formally request negotiations for AFAs for programs, functions,
services, and activities of special geographic, historical, or cultural
significance to the tribe. The ten tribes which compose CATG have a
special geographical and cultural relationship to the lands and
resources within the refuge boundaries. The law and regulations provide
a preference for these types of programs, and provide the agency
discretion to award the AFAs on a non-competitive basis. It would not
have been appropriate for the Service to enter good faith negotiations
with CATG (as was required by the regulations), reach this Agreement,
and then decide to award the same work through a competitive process.
We believe that the dollar amounts awarded to CATG through this
annual funding agreement are fair and reasonable for the work being
performed, whether being done by CATG or another contractor. Because:
(1) CATG's office and employees are located within the boundaries of
the refuge; and (2) logistical costs would be very high for any
individual or business outside of the Yukon Flats, it is unlikely that
another contractor could do this same work as cost effectively as CATG.
Federal conservation agency budgets, including the Service's
budget, are forecast to decline in the next several years. For this
reason, successor AFAs with CATG in future years, and any agreements
requested by other tribes for national wildlife refuges, will continue
to be subject to a high bar test for efficiency and cost-effectiveness.
Issue 7: Request that we not use Public Law 93-638 authority to
contract. One comment emphasized that the Service has the discretion to
enter an AFA and urged us to enter a different contracting arrangement.
Response: We agree that the Service has complete discretion to
enter into this Agreement. We have received requests and formal
proposals from CATG and other tribes, for several years, to negotiate
agreements under provisions of Public Law 93-638. Until 2003, we
declined to enter AFAs for several reasons. During this same period,
however, the Service has contracted with CATG for work under other
contract authorities. We have seen CATG build their capacity for this
type of work and increase their expertise. Because CATG has agreed to
perform the Activities under the terms that were mutually agreed upon,
we choose to enter this Public Law 93-638 AFA with the hope and
expectation that increased cooperation and coordination with the tribes
will follow.
Issue 8: Question about the Service's authority to enter this
Agreement. One comment questioned whether the Service has the authority
to enter into this Agreement and cited Section 5 of the National
Wildlife Refuge System Improvement Act of 1997.
Response: Section 5 of the Act does provide for the Service:
* * * to enter into cooperative agreements with State fish and
wildlife agencies for the management of programs on a refuge.
However, the Act does not limit the authority of the Service to
enter into other contracts or agreements for work on national wildlife
refuges, as allowed by other Federal laws. It is also important to note
that we did not enter into a cooperative agreement (or AFA)
[[Page 41842]]
for CATG to manage programs of the Refuge. We retained all of our
refuge management responsibilities and authorities.
Issue 9: Concerns about tribes' sovereign immunity. Ten comments
expressed concern that if CATG has sovereign immunity there would be no
way for the government to get money back if the work is not completed
satisfactorily. Two comments were concerning legal recourse should a
member of the public be accidentally injured by a CATG employee working
under this Agreement.
Response: The CATG does not have sovereign immunity. While the
member tribes of CATG are federally recognized Indian tribes with
sovereign immunity, CATG has no governmental status. The CATG is a
nonprofit tribal organization as defined in Public Law 93-638, but it
is not immune to legal action. Members of the public who might be
injured because of actions by a CATG employee have legal recourse
against CATG, and to the U.S. Government under the Federal Tort Claims
Act.
Issue 10: The Service should not pay CATG at the beginning of the
contract. Several comments stated it was a bad business practice to
give a contractor all of the money up-front.
Response: The Compact of Self-Governance entered into by the
Secretary of the Interior and the Council of Athabascan Tribal
Governments on October 1, 1999, specifically states:
For each fiscal year covered by an AFA negotiated under this
Compact, the Secretary shall pay the funds specified for that fiscal
year under the AFA by paying the total amount provided for in the
AFA in one advance lump sum payment to the extent applicable.
The Service is working with the member tribes of CATG in a
government-to-government relationship under Public Law 93-638. Normal
government contracting regulations do not apply to that Act. If the
Federal government ``reassumes'' programs from a tribe (or consortium
like CATG), based on a finding of imminent jeopardy to a physical trust
asset, a natural resource, or public health and safety, then under 25
CFR 100.315:
* * * the Tribe/Consortium must repay funds to the Department as
soon as practical after the effective date of the reassumption.
Issue 11: Concerns that the Agreement could limit visitor access. A
few comments expressed concern about the potential of this Agreement to
have an adverse impact on their ability to access or use Refuge lands.
Response: This Agreement will not affect whom, when, or where the
public can use the Refuge for hunting, fishing, wildlife observation
and photography, environmental education and interpretation, or other
uses. It will not affect the management direction for the Refuge, which
was defined with substantial public input through the refuge
comprehensive conservation planning process. The Refuge CCP was
approved and adopted in 1987.
We do hope that the Agreement will improve the public's ability to
access Refuge lands through the identification and marking of public
access easements across Native corporation lands within the Refuge
boundary. It is a federal responsibility to mark these easements.
Similar programs have been underway on other national wildlife refuges
in Alaska for several years.
Issue 12: Waiver of regulations. Several comments objected to
provisions in the Compact [Section 14 (b)] and the Agreement [Section
8. C.] that allow CATG to request a waiver of any DOI regulation that
CATG believes will present an obstacle to carrying out the Agreement.
There was also concern expressed about the wording in the Compact,
which states that a request for a waiver of regulations can be denied:
* * * only upon a specific finding by the Secretary that
identified language in the regulation may not be waived because such
waiver is prohibited by federal law.
Response: The regulation waiver provision in the Compact [Section
14(b) (ii)] is qualified with the clause:
* * * Until such time as regulations are promulgated * * *
The Compact was signed on October 19, 1999. The regulations
currently in effect at 25 CFR part 1000 became effective on January 16,
2001, and codified the waiver provisions, which are now different and
more comprehensive than in the Compact. In 25 CFR 1000.225, for a non-
Title I eligible Activity (such as those covered by this Agreement) the
Secretary may deny a waiver request if it is:
(b) (1) Prohibited by Federal law; or (b) (2) Inconsistent with
the express provisions of the AFA.
In 25 CFR 1000.222, the tribe must submit a written request for a
waiver from the appropriate bureau director for non-BIA programs.
Therefore, the tribe would have to address the request to the Director
of the Service. The Director would consult with the Alaska Region in
reviewing this request. The request could not be granted if it is
prohibited by Federal law or is inconsistent with the Agreement.
Issue 13: Federal management responsibility. Many comments were
concerned about the Service turning over management responsibilities to
a tribe. One comment said the Agreement is suggestive of co-management.
Another said the Agreement would let CATG set priorities on the Refuge.
They suggested that Sections 7(B) and 8(B) be revised. Some said all
programs, functions, services, and activities of the National Wildlife
Refuge System are inherently Federal.
Response: The National Wildlife Refuge System Administration Act,
as amended, is quite clear that the responsibility and authority for
the administration and management of the National Wildlife Refuge
System lies with the Service. We thought this was clear in the
Agreement, but in response to this concern, and after re-negotiation
with CATG, we changed the wording under Section 7A. (FWS Direction and
Control) as follows: (Italics are added to the sentences below in this
document to highlight the change.)
From:
A. Refuge Manager. Under this AFA, the Refuge Manager will
retain ultimate responsibility and authority for directing and
controlling the operation at the Yukon Flats NWR.
To:
A. Refuge Manager. Under this AFA, the Refuge Manager will
retain all responsibility and authority for directing and
controlling the administration, management, and operations at the
Yukon Flats NWR.
The Service did not give away any management responsibilities or
authorities under this Agreement. We are aware of our public and
resource management responsibilities. In this Agreement, we have
included only Activities that we believe will benefit the Refuge, the
public, and CATG. We agree that there are inherently Federal functions
involved in managing a national wildlife refuge. However, we do not
claim that all work that takes place on a national wildlife refuge is
inherently federal and needs to be performed by Service employees. We
often rely on contractors, universities, other agencies, and volunteers
to provide some of our aircraft and/or logistical support, data
collection (including harvest data) and analysis, education and
outreach, maintenance of equipment, printing, fire suppression, etc.
This Agreement does not establish co-management. The negotiation
process set the priorities and the standards of the work to be done
under the Agreement. If we decide that priorities or standards must be
revised during the execution of the Agreement, we will re-
[[Page 41843]]
negotiate for those revisions, in order to include them in a cost-
effective manner.
Issue 14: Reference to laws affecting national wildlife refuges.
One comment noted that the Agreement did not refer to the National
Wildlife Refuge System Improvement Act or the Alaska National Interest
Lands Conservation Act.
Response: The Agreement does refer to the Alaska National Interest
Lands Conservation Act in Section 4 under the definition of the Yukon
Flats National Wildlife Refuge. We agree that there should be a
reference to the National Wildlife Refuge System Improvement Act in the
Agreement, and have included it and the National Wildlife Refuge
Administration Act in Section 4. (Note--the Improvement Act of 1997
amended the Administration Act of 1966.)
Issue 15: Replacing qualified Service personnel. Several comments
expressed concern that this Agreement, and others that may follow, will
replace our current dedicated, well-trained refuge staff with less
qualified individuals.
Response: This Agreement will not lead to the loss of existing
Service employees. Employees will neither be replaced nor will their
duties be diminished under this Agreement. We view this Agreement as an
expansion of the Refuge's existing programs and services to the public.
However, we have said during negotiations with CATG that whenever there
is a vacancy in an existing Refuge position in Fairbanks (due to
retirement, voluntary reassignment, or merit promotion), we will look
at the duties performed by that position to see if some of the work
could be efficiently performed by CATG. If feasible and cost efficient,
we may then restructure the duties of the vacant position. This would
likely be complex, because other personnel management issues are often
at play in position management, and because in Fairbanks the
headquarters of the Yukon Flats, Kanuti, and Arctic National Wildlife
Refuges share some staff for some duties. While we have encouraged CATG
to build natural resource management capacity, we have also made it
clear that we will not reassign existing Refuge employees to free up
new work for CATG.
The Service also maintains a Student Career Experience Program
where graduating student employees are reassigned to vacant refuge
positions. These students have career-conditional employment status and
have priority for placement. Most of them have advanced degrees in
biology or natural resource management. The Service in Alaska has
successfully used this program to recruit, train, and permanently hire
several Alaska Natives and will continue to place a priority on this
training program.
Issue 16: The CATG personnel should meet certified wildlife
biologist standards. One comment stated that CATG personnel performing
biological investigations should be certified wildlife biologists under
a program established by The Wildlife Society.
Response: The Office of Personnel Management (OPM) sets standards
of required college or other training coursework for specialized
professional job series. The OPM does not require applicants to meet
the standards set by The Wildlife Society for an individual to meet
their Certified Wildlife Biologist classification. The CATG Liaison for
the project, Eastern Yukon Flats Moose Population Estimation Survey,
included in the Agreement, is a wildlife biologist and former employee
of the Alaska Department of Fish and Game. Work to be performed under
this project requires knowledge of wildlife management practices in
general and of moose management specifically. The CATG Liaison has that
knowledge and experience. Some of the work requires exceptional low-
level piloting skills and a good safety record. There are some charter
pilots available in Alaska that meet these requirements who are also
routinely contracted by the Service and the Alaska Department of Fish
and Game.
Some of this work only requires the skill to spot moose out of an
airplane, to determine individual characteristics of the moose observed
from a turning airplane, and to keep good records. This particular
project grew out of earlier programs where local residents with good
game spotting skills were employed as volunteer aerial observers to:
(1) Utilize their skills, and (2) provide credibility with local people
for the results of the agencies' moose surveys and census.
Issue 17: The Service should hire Alaska Natives. One comment
suggested we use the local hire authority granted under provisions of
Section 1308 of the Alaska National Interest Lands Conservation Act.
The Act provides for hiring of any individual, who because of having
lived or worked in or near a conservation system unit, has special
knowledge or expertise concerning the natural or cultural resources of
such unit. The law provides that individuals with these attributes
shall be considered for any position within the unit, without regard to
any provision of the civil service laws or regulations that require
minimum periods of formal training or experience (and other
provisions).
Response: The Service routinely reviews new or vacant positions on
refuges in Alaska for consideration of recruitment under the local hire
provisions of ANILCA. However, recruiting Alaska Natives under other
hiring authorities can often be more advantageous to the individual by
allowing better career mobility options. Currently the Refuge employs
two Alaska Natives hired under the ANILCA local hire program, and one
other Alaska Native hired through the Student Career Experience
Program. The Service aggressively seeks to diversify its workforce
through recruitment outreach efforts and the use of all available
hiring regulations and programs. The Activities included in this
Agreement require various skills that any one individual may not have.
Under the Agreement, the CATG can assign the work to the appropriate
existing employee.
Issue 18: Concern about a conflict of interest. Two comments
expressed concern that the Agreement creates an appearance of, or the
potential for, conflict of interest because CATG members have actively
pursued wildlife harvest allocation decisions that benefit their
interests.
Response: The wildlife harvest information will be collected
according to protocols developed by the Federal Office of Subsistence
Management, the Service's Migratory Bird Management Office, and by the
Subsistence Division of the Alaska Department of Fish and Game. These
offices have found that engaging local people to collect this
information leads to better information than can be obtained by agency
personnel. The harvest reporting is done by household, rather than by
individual hunters and is more accurate. The information reported can
not be traced back to the individual hunter. This encourages honest
reporting.
The moose population survey in this Agreement is a continuation of
an existing program that has been, and will continue to be, well
coordinated with the Service and the Alaska Department of Fish and
Game. Usually these agencies are conducting similar surveys in adjacent
areas at the same time. Information obtained from these surveys will be
used in making management decisions--that is the purpose of the
surveys. The CATG, or members of CATG, will likely comment on proposals
affecting seasons, bag limits, and harvest allocations for the moose
population of the surveyed area. However, due to the open,
collaborative public processes used by the Federal Subsistence Board
and the Alaska Board of Game in making management
[[Page 41844]]
decisions, and the collaborative and cooperative manner in which the
moose surveys are conducted, we are not concerned that CATG's
participation in surveys would result in either inaccurate information
before the Boards or in undue influence on their decisions. We do not
believe the issue would constitute a conflict of interest. Moreover, a
positive result will be providing more credibility to agency
information and the Boards' actions to the local residents.
Issue 19: Concern about study design and approval. This comment
from the Alaska Department of Fish and Game expressed concern that the
survey designs lack sufficient detail and the proper involvement of the
Department in management of resident wildlife in Alaska.
Response: Upon receipt of this letter from the Alaska Department of
Fish and Game, we discussed this issue with the Department and believe
we resolved their concerns. The Service acknowledges that both the
Alaska Department of Fish and Game and the Service share a mutual
concern for fish and wildlife resources and their habitats, and both
are engaged in extensive fish and wildlife conservation, management,
and protection programs in Alaska. We desire to develop and maintain a
cooperative relationship that will be in the best interests of both
agencies, the concerned fish and wildlife resources and their habitats,
and produce the best public benefits.
We would not enter this Agreement with CATG, or negotiate future
agreements, where specific wildlife management work was not
accomplished by qualified individuals or according to recognized
wildlife management techniques and procedures acceptable to both the
Service and the Alaska Department of Fish and Game. The work to be
performed in the projects, Eastern Yukon Flats Moose Population
Estimation Survey and Wildlife Harvest Data Collection, has been, and
will continue to be, extensively coordinated with the Alaska Department
of Fish and Game. These projects are designed and will be conducted
according to established and acceptable procedures. The results of
Activities performed by CATG must be acceptable to, and useable in,
management and allocation decisions by the Service, the Alaska
Department of Fish and Game, the State Board of Game, and the Federal
Subsistence Board. Because the information obtained from these projects
will be subject to close scrutiny by these entities and by the general
public, both the Service and CATG are aware that unacceptable results
could jeopardize inclusion of this work in future agreements.
Issue 20: Public review of amendments to the Agreement. A number of
comments expressed belief that the public should be able to review all
proposed changes to an active agreement.
Response: We are strongly encouraged by the National Wildlife
Refuge System Administration Act, as amended, to notify the public of
our refuge management actions. The regulations implementing Pub. L. 93-
638 provide for an optional public consultation process in the
negotiation of an AFA. (See 25 CFR subpart I--Public Consultation
Process, part 1000.210-.214.) Because of our commitment to public
involvement, the Service's Alaska region will be guided by the
following operational standards for public notice when negotiating
amendments or successor agreements. If during the course of this
Agreement, the Service and CATG negotiate an amendment to the 2004-2005
Agreement which does not materially change the type of work to be done,
or does not increase the funding level by more than 25 percent, we will
not notify the public until after the fact. If we propose to amend the
2004-2005 Agreement by more than 25 percent of the funding level or
materially change the work, we will first notify the public with a
minimum 15-day public comment period. If we negotiate a successor
agreement for 2005-2006 that materially changes the work to be done
and/or exceeds the 2004-2005 Agreement amount by more than 25 percent,
we will notify the public and have a minimum 30-day public comment
period. If, over time or through negotiation, we have substantially
increased the cost of successor agreements, we would consider changing
the percentages discussed here. We are hopeful of a long-term,
successful relationship with CATG and fully expect to negotiate
successor agreements.
Issue 21: Moose harvest information should be reported monthly. One
comment suggested that the specifications for the Wildlife Harvest Data
Collection include a requirement for monthly reporting of moose
harvests in the deliverables section.
Response: Originally, this was addressed in the timeline section of
the proposal. We have moved the requirement to the deliverables
section, and it now reads:
A monthly report will be prepared that summarizes the moose
harvested in each village. In addition, a summary will be prepared
annually for all species on which harvest data has been collected.
The summary will be reported to the FWS Liaison via phone, fax, or
e-mail. The February 28th report will also include a summary of the
moose harvested from August 25, 2004, to February 28, 2005. The
report formats will follow CATG Technical Document 03-02.
Issue 22: Random surveys may be required. One comment also
suggested that random sampling of a subset of larger communities should
be considered as a cost savings measure to ensure success of the
survey.
Response: To address this comment we have inserted the following
two sentences in the second paragraph of the procedures section:
If budget constraints limit the ability to survey 100% of Yukon
Flats village households, for the Village of Fort Yukon only, a
subset of households may be sampled. In this instance, 50-75% of the
households would be randomly selected for survey and the results
will be extrapolated to represent the Fort Yukon harvest.
Issue 23: Concern that the Refuge would be managed for Native
Americans. Three comments expressed their concern that the Agreement
would subordinate the purposes of refuge management to the benefit of
the tribes.
Response: The Yukon Flats National Wildlife Refuge and other
national wildlife refuges have always been, and will continue to be,
managed for all Americans--present and future generations. The
Agreement would allow some of the work of the Service on the Refuge to
be accomplished by CATG. However, the refuge manager will retain all
responsibility and authority for management and decision-making. The
rights of the American public to use the Refuge will not be diminished
in any manner.
Issue 24: Section 403(k) precludes this Agreement. One comment
suggested that the Service and the Department have downplayed Section
403(k) of the Tribal Self-Governance Act.
Response: We reviewed the applicable sections of the law and
consulted with our attorney to ensure that our actions were correct.
Here are the applicable sections of the law:
Section 403(k): Disclaimer.--Nothing in this section is intended
or shall be construed to expand or alter existing statutory
authorities in the Secretary so as to authorize the Secretary to
enter into any agreement under sections 403(b)(2) and 405(c)(1) with
respect to functions that are inherently Federal or where the
statute establishing the existing program does not authorize the
type of participation sought by the tribe: Provided, however an
Indian tribe or tribes need not be identified in the authorizing
statute in order for a program or element of a program to be
[[Page 41845]]
included in a compact under section 403(b)(2).
Section 403(b)(2) states: (b) Contents.--Each funding agreement
shall--(2) subject to such terms as may be negotiated, authorize the
tribe to plan, conduct, consolidate, and administer programs,
services, functions, and activities, or portions thereof,
administered by the Department of the Interior, other than through
the Bureau of Indian Affairs, that are otherwise available to Indian
tribes or Indians, as identified in section 405(c), except that
nothing in this subsection may be construed to provide any tribe
with a preference with respect to the opportunity of the tribe to
administer programs, services, functions, and activities, or
portions thereof, unless such preference is otherwise provided for
by law.
Section 405(c) states: Report on Non-BIA Programs.--(1) In order
to optimize opportunities for including non-Bureau of Indian Affairs
programs, services, functions, and activities, or portions thereof,
in agreement with tribes participating in Self-Governance under this
title, the Secretary shall--
(A) Review all programs, services, functions, and activities, or
portions thereof, administered by the Department of the Interior,
other than through the Bureau of Indian Affairs, without regard to
the agency or offense concerned; and
(B) Not later than 90 days after the date of enactment of this
title, provide to the appropriate committees of Congress a list of
all such programs, services, functions, and activities, or portions
thereof, that the Secretary determines, with concurrence of tribes
participating in Self-Governance under this title, are eligible for
inclusion in such agreements at the request of a participating
Indian tribe.
The list of eligible programs, services, functions, and activities
required by Section 405(c) was last published in the Federal Register,
Volume 67, No. 66, Friday, April 5, 2002, page 16434:
Some elements of the following programs may be eligible for
inclusion in a self-governance annual funding agreement. * * * This
listing is not all-inclusive but is representative of the types of
programs, which may be eligible for tribal participation through an
annual funding agreement.
For purposes of this review, we list below only those programs or
elements listed in the Federal Register which are similar to those
included in this Agreement.
1. Subsistence Programs within Alaska
2. Fish & Wildlife Technical Assistance, Restoration, &
Conservation:
a. Fish & wildlife population surveys
b. Habitat surveys
e. Fish & wildlife program planning
4. Education Programs:
a. Interpretation
b. Outdoor classrooms
9. National Wildlife Refuge Operations & Maintenance
a. Construction
d. Maintenance
f. Biological program efforts
The Agreement covers the following Activities only: (1) Wildlife
harvest data collection; (2) moose surveys; (3) environmental education
and outreach; (4) maintenance of equipment and facilities at Fort
Yukon; and (5) locating and marking trails on private lands within the
refuge boundary where the government retained an easement under
provisions of section 17(b) of the Alaska Native Claims Settlement Act
of 1971. [The lands on which these easements are located are privately
owned by Native village corporations and Native regional corporations.
The easements provide for legal access by the public across (and
limited camping on) the private lands in order to access public lands
beyond.] The Agreement does not give up any inherently federal
responsibilities for budget allocation, planning, decisionmaking,
assignment of priorities, or any other over-arching government
responsibility for these Activities. The Service has retained the
management responsibility for these Activities.
Dated: May 18, 2004.
Rowan W. Gould,
Regional Director, Alaska Region, Fish and Wildlife Service.
[FR Doc. 04-15704 Filed 7-9-04; 8:45 am]